Raines v. Front Porch Communities and Services

8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA KRISTINA RAINES and DARRICK Case No.: 19-cv-01539-DMS-DEB FIGG, individually and on behalf of all others similarly situated, ORDER DISMISSING PLAINTIFFS’ 13 FOURTH CAUSE OF ACTION Plaintiffs, v. U.S. HEALTHWORKS MEDICAL GROUP, et al., 17 Defendants.

19 Pending before the Court is Plaintiffs’ ex parte application for an order dismissing the fourth cause of action in the Third Amended Complaint with prejudice.

21 On January 25, 2021, the Court granted Defendants’ motion to dismiss Plaintiffs’ Third Amended Complaint (“TAC”). (ECF No. 114.) The Court dismissed Counts One, Two, and Three with prejudice and dismissed Count Four without prejudice, granting Plaintiffs fourteen (14) days’ leave to amend. The time for Plaintiffs to file a Fourth Amended Complaint has since expired.

26 On February 26, 2021, Plaintiffs filed the present application, stating they do not elect to file a Fourth Amended Complaint, but rather intend to appeal the Court’s dismissal of the TAC. (ECF No. 115.)

1 In the Ninth Circuit, an order dismissing a complaint with leave to amend is not a 2 order for purposes of appeal. WMX Techs., Inc. v. Miller, 104 F.3d 1133, □□□□□□□ || (9th Cir. 1997) (en banc). “Unless a plaintiff files in writing a notice of intent not to file ||an amended complaint, [a dismissal order with leave to amend] is not an appealable final ||decision.” Lopez v. City of Needles, 95 F.3d 20, 22 (9th Cir. 1996). Here, the filing of ||such a notice of intent “gives the district court an opportunity to... to enter an order dismissing the action, one that is clearly appealable.” Jd. Plaintiffs request the Court ||dismiss Count Four with prejudice to permit an appeal. (ECF No. 115 at 2.)

9 Accordingly, Plaintiffs having submitted written notice of their intent not to file an ||amended complaint and request for dismissal, the Court GRANTS Plaintiffs’ request and || DISMISSES Plaintiffs’ fourth cause of action in the TAC with prejudice, pursuant to the 12 reasoning in the January 25, 2021 Order.

13 IT IS SO ORDERED.

15 ||Dated: March 2, 2021 □ gf, p 16 4 Yn: 7 Hon. Dana M. Sabraw, Chief Judge United States District Court